CRIMINAL PROCEDURE
Criminal procedure is an interesting area of law, as a majority of its rules comes from the constitution in the fourth, fifth, sixth, seventh and eight amendments. Of great controversy is the interpretation of the fourth amendment and how technology has influencedthefourthamendment,leadingtoconstantchangesinthemannerinwhichthe Supreme Court has interpreted the fourth amendment. This lecture will walk listeners throughthefourthamendmentandthewarrantrequirement,thefamousMirandadoctrine thatmanylistenershavenowmemorizedthankstocrimeshowslikelawandorder,aswell as,thesixthamendmentrighttocounsel. Additionally,wewilllookatothermiscellaneous topicssuchasthegrandjury,doublejeopardy,confessions,etc.
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In this section, we will begin our study of the fourth amendment, and the general principlessurroundingthefourthamendment.
I. FOURTH AMENDMENT: A. GENERAL FOURTH AMENDMENT PRINCIPLES
1. Standing
TheFourthAmendmentreads:“Therightofthepeopletobesecureintheirpersons, houses, papers, and effects against unreasonable searches and seizures shall not be violated, and no Warrants shall issue, but on probable cause, supported by Oath or affirmation,andparticularlydescribingtheplacetobesearched,andthepersonsorthings to be seized.” This amendment protects persons against unreasonable arrests or other seizuresaswellasunreasonablesearches. Inaddition,whenawarrantisrequired,itmust complywiththeseconstitutionalrequirements.
Fourth Amendment rights are personal and may not be asserted vicariously. A defendantcannotsuccessfullychallengegovernmentalconductasaviolationoftheFourth Amendment protection against unreasonable searches and seizures unless the defendant himself has been seized or he has a reasonable expectation of privacy with regard to the placesearchedortheitemseized. Itisnotenoughthattheintroductionasevidenceofan item seized may incriminate the defendant. This is important qualification as it gives the defendant standing, a factor necessary to bring a motion to suppress illegally obtained evidence.
For Example: Defendants Al and Bob are accused of burglarizing an electronics store. PolicefoundstolenDVDplayersinAl’sapartmentafteranillegalwarrantlesssearch.
OnlyAlhasstandingtoraisetheissueofaFourthAmendmentviolation;Bobmaynotraise itinhisowndefense,ashisrightswerenotviolated.
Often,theissueofstandingappearswheretwoindividualsaretravelinginthesame car,andthepassenger,whodoesnotownthecar,assertsa fourthamendmentissuewhen thefriend’sstashofpotwasfoundinhisfriend’scar. Thecarwassearchedillegally,onlyto discover the pot in theglove compartment, however,thepassengerdoes not own the car, andthereforestandingcomesintoplay.
The policy behind seeks to promote the personal nature of individual rights and injuries.
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2. The Exclusionary Rule
The exclusionary rule, in simple terms, excludes evidence that is illegally obtained, frombeingintroducedduringtrialtoprovethedefendant’sguilt.
Therighttobefreefromunreasonablesearchesandseizuresmustbedistinguished from the remedy. The primary remedy is the “exclusionary rule,” which prevents the introduction at a subsequent criminal trial of evidence unlawfully seized. This rule is arguablyaharshrule,but,atthesametime,itensuresindividualrightsarewellrespected and free from police misconduct. It is interesting to note that not all countries have a similar rule. In countries such as England and France, the judge has discretion to determinewhetherseriousharmmightoccuriftheillegallyobtainedevidenceispermitted duringtrial.
This remedy is judicially created, not constitutionally mandated. The remedy provided by the exclusionary rule generally applies to criminal trials; it does not apply in othercourtproceedings,includingfederalhabeascorpusreviewofstateconvictions,grand jury proceedings, preliminary hearings, bail hearings, sentencing hearings, and proceedingstorevokeparole. Evidencewillalsonotbeexcludedattrialwhenintroduced as impeachment evidence against the defendant. Finally, the exclusionary rule is not applicabletocivilproceedings.
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3.Abuse of Discretion Standard
The judge, not the jury, resolves suppression issues raised by a pretrial motion to suppress. These issues are reviewed on appeal under the “abuse of discretion” standard.
Furthermore,amotiontosuppressistypicallyintroducedevenbeforetrialbegins, andhas nothing to do with the defendant’s guilt but instead addresses the issue of police misconduct.
4.Threshold of Governmental Action
The Fourth Amendment limits governmental action; it does not restrict the acts of private parties unless the private person is acting as an “instrument or agent of the government.” Even if governmental action exists, there still is no constitutional violation unlesstheindividualhada reasonableexpectationofprivacyandeitherthepolicedidnot haveavalidwarrantortheyexecutedaninvalidwarrantlesssearch.
Important takeaway: Remember,theFourthAmendmentappliesonlytosearches and seizures conducted by police or someone acting under police direction. The latter includesanyoneactingasanagentforthepolice. Thiscouldevenbeillegalconductbyyou andI,actinginaccordancewithapoliceofficer’sinstructions.
For example, Andy shared an apartment with his roommate Bob. Bob was being investigatedbypoliceofficersforillegallyhackingaprofessor’scomputertoleakanexam. PoliceofficersshowupatAndyandBob’sapartmentwhenBobisout. Policeofficersstand at the door while asking Andy to log into Bob’s computer to search for any saved exams. Andyfindsafoldertitled“Exams”andconvenientlyemailsittothepolice. Eventhoughthe policedidnotaccessBob’scomputer,Andydidundertheirinstructions.
5.Grand Jury Subpoena
Unless a grand jury subpoena is being used for harassment or is extremely broad, requiring a person to appear before the grand jury under such subpoena does not fall under the protection of the Fourth Amendment. Grand juries are separate proceedings withmorelimitedFourthAmendmentrights.
6.Broader Rights Possible Under State Constitution
Astatemaygrantbroaderrightsunderitsownconstitutionthanaregrantedbythe federalConstitution. Thus,eventhoughtheFourth(orFifthorSixth)Amendmentmaynot restrictthestategovernment,stateconstitutionallawmay. Thisrestsonconstitutionallaw grounds that recognize that the Supreme Court cannot review state decisionsthat rest on adequateandindependentstategrounds. TheStateofCaliforniaisfamousforintroducing confusingrules.
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B. ARREST: UNREASONABLE SEIZURE OF PERSONS
1. Seizure: Objective Test—Not Free to Leave
The police seize a person when the officer, by means of physical force or show of authority,terminatesorrestrains theperson’sfreedomofmovement. Thereisnoseizure withoutactualsubmission. Therefore,ifapersonbeginstorunuponbeingaskedtostop, there isn’t a seizure, as the person hasn’t submitted to police authority. However, conflictingcaselawoftendiffersinitstreatmentofapersoninmotion.
When the actions of the police do not show an unambiguous intent to restrain or when the individual’s submission to a show of governmental authority takes the form of passiveacquiescence,aseizureoccursonlyif,inviewofthetotalityofthecircumstances,a reasonablepersonwouldbelievehewasnotfreetoleave. Thetestiswhetherareasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter. Here, the subjective element of an individual’s belief in his freedom of movementisimportant.
Weshouldfirstlookatthemeaningofintentionaldetention.
a. Intentional detention
Thepoliceofficermustintentionallyemployphysicalforceorashowofauthorityin order for the officer’s actions to result in a seizure. This application of force becomes murkybecauseofhowdependentitisonanindividual’s subjectivebelief. Furthermore,it isimportanttoconsiderwhathappenswhenanoff dutypoliceofficerisactingorwherean individualactingunderthedirectionofapoliceofficerisacting?
For Example: Duringahigh speedchase,anofficerforcedthedriverofthepursued automobile off the road. The officer’s intentional use of deadly force against the driver constitutedaseizure.
Compare: During a high-speed chase, an officer accidentally struck and killed the passenger of the pursued motorcycle when the motorcycle tipped over. The officer’s accidentaluseofdeadlyforceagainstthepassengerdidnotconstituteaseizure.
However, as long as the officer intentionally employs force or makes a show of authority, the officer’s purpose need not be to detain the defendant in order for the defendant to be seized. Consequently, whena police officer makes a traffic stop, not only the driver but also any passengers are deemed to be seized. Therefore, the passenger as
wellasthedrivermaychallengetheconstitutionalityofthestop.
KEY TAKEAWAY: Thus, remember that an illegal arrest or unreasonable seizure of the personitselfisaviolationofthefourthandfourteenthamendment.
2. Contrast Stop and Frisk
A temporary detention for the purpose of a stop-and-frisk search is not an arrest, but it may still constitute a seizure for Fourth Amendment purposes. The test is whether theofficer,bymeansofphysicalforceorshowofauthority,hasinsomewayrestrainedthe liberty of the citizen. Seizure includes physical restraint or an order to stop so that the officercanfriskandaskquestionsonthestreet. Wherethestopprolongsforalongperiod oftime,thetemporarystopbecomesaseizure.
Further, there is some confusion on whether an individual is being seized while in chase. That is, if a police officer is chasing after an individual, does a seizure begin the minutehestartschasingtheindividualorwhenhestopstheindividual? Caselawadopts differentapproaches.
3. Arrest Warrants
Anarrestwarrantisissuedbyadetachedandneutralmagistrateuponafindingof probable cause that a crime has been committed and that it was the particular defendant whocommittedtheparticularcrime.However,an arrestmadepursuanttoawarrantthat failed to satisfy the probable cause requirement is not illegal when the officer making the arrestindependentlyhadprobablecauseformakingthearrest.
a. Entry into home
A warrant to arrest an individual implicitly authorizes entry into the arrestee’s hometoservethewarrantifthepolicehaveprobablecausetobelievethatthearresteeis present. A police officer may not arrest a person in another person’s home without a search warrant, absent exigent circumstances or valid consent. This is because, even though an officer may have an arrest warrant, the officer doesn’t have authority to enter another’s home to make the arrest. Thus, the officer will need an arrest and search warrant.
4. Warrantless Arrests
Unlike searches, police generally do not need a warrant to make a valid arrest in a publicplace,eveniftheyhavetimetogetone. Thepolice,however,musthaveawarrantto arrestanindividualinhisownhome,absentexigentcircumstancesorvalidconsent. This
isabroadrightbutisavailableinlightofsecurityandpublicinterest.
Twodifferencesexistwithrespecttofeloniesandmisdemeanors.
a.
Crime committed in the presence of the arresting party
Eitherapoliceofficeroraprivateindividualhasarighttoarrestwithoutanarrest warrant if either a felony or a misdemeanor amounting to a breach of the peace is committed in the arresting party’s presence. Actual commission in the presence of an officer or private individual is imperative for arrest. Again, the most practical reason for thisisthatifanofficerisseeingacrimetakeplace,heorsheshouldhavetherighttoarrest inordertoalleviatefurthercommissionofcrimes. Forexample,ifanofficerisparkedina parkinglotwhereheseesanindividualengaginginadrugdeal,itwouldmake absolutely no sense for an officer to first approach a judge and get a warrant rather than simply arresting.
b. Crime committed outside the presence of the arresting party
Insituationsinwhicha felonyhasbeencommittedoutsidethepresenceoftheone making the arrest, a police officer may arrest anyone whom he reasonably believes has committed a felony, but a private individual may make an arrest only if (i) a felony has actuallybeencommittedand(ii)theprivateindividualreasonablybelievesthattheperson being arrested is guilty. The first element is important because the right to arrest is now giventoordinarycitizens,whogenerallydonothavethepowertoarrest,andthusmustbe strictlyapplied.
c. Misdemeanor arrest
Awarrantlessarrestofapersonforamisdemeanorpunishableonlybyafineisnot anunreasonableseizureundertheFourthAmendment.
KEY TAKEAWAY:Themisdemeanormusthavebeencommittedinthepresenceof thearrestingparty;probablecausetobelievethatamisdemeanorwascommitted,without actuallywitnessingthecrime,isnotsufficientforavalidwarrantlessarrest.
d. Effect of invalid arrest
Anunlawfularrestalonehas nobearingonasubsequentcriminalprosecution,and it is not a defense to the crime charged. If the police have probable cause to detain a suspect, they may do so even if they illegally arrested him (for example, in his home withoutawarrant).
An unlawful arrest has legal significance, however, when there is a seizure of
evidence. Evidenceseizedpursuanttoanunlawfularrestmaybesuppressedattrial.
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C. SEARCH AND SEIZURE
Inthissection,wewilldiscusstheallimportantsearchandseizure requirementof thefourthamendment. Thetermssearchandseizuremayseemrather straightforwardto mostofyou,butinreality,itsinterpretationandmeaninghasdevelopedovermany years ofcaselaw.
1. Governmental Action
The fourth amendment protects an individual from unreasonable searches and seizures. However,beforethefourthamendmentcomesintoplay,wemustfirstdetermine iftherewasasearch. Oncewehaveestablishedthatasearchoccurred,wecanthenlookat whetherapoliceofficerhadawarrant.
Anotherimportantfactortobearinmindisthatonlygovernmentactionsorconduct falls under the fourth amendment. Government conduct includes the ubiquitous police officerbutalsoincludesanyindividualwhoisactingunderthedirectionofapoliceofficer, includingyouandI.
The Fourth Amendment does not protect searches conducted by private citizens Theremustbegovernmentalaction. However,aspreviouslymentioned,thepolicemaynot circumventtheFourthAmendmentbyintentionallyenlistingprivateindividualstoconduct asearchofasuspectorareasinwhichthesuspecthasareasonableexpectationofprivacy.
2. Defining “Search”: The Violation of a Reasonable Expectation of Privacy
Only unreasonable searches and seizures are subject to the Fourth Amendment. A searchoccurswhengovernmentalconductviolatesareasonableexpectationofprivacy.
Case Study: Katz v. United States
Thecourt’sinterpretationofaconstitutionalprotectedareacontinuedunabatedfor 39years,whenin1967,Katzv.UnitedStateswasdecided. Thenotionofprivacywasvery much an afterthought until this case. In Katz, the petitioner was convicted in the District CourtfortransmittingwageringinformationbytelephonefromLosAngelestoMiamiand Boston in violation of a federal statute. In convicting the petitioner, the government was permitted to introduce evidence of the telephone conversations, overheard by FBI agents whohadattachedanelectroniclisteningandrecordingdevicetotheoutside ofthepublic
telephoneboothfromwhichhehadplacedhiscalls.
The Court of Appeals rejected the contention that the petitioner’s Fourth Amendment rights were violated stating that since there was no physical entrance in the areaoccupiedbythepetitioner,therewasnosearch.
The Supreme Court granted certiorari to rehear the case in order to consider two questions:(i)whetherapublictelephoneboothisaconstitutionallyprotectedareasothat evidenceobtainedbyattachinganelectroniclisteningrecordingdevicetothetop ofsucha booth is obtained in violation of the right to privacy of the user of the booth, and (ii) whether physical penetration of a constitutionally protected area is necessary before a searchandseizurecanbesaidtobeviolativeoftheFourthAmendmenttotheUnitedStates Constitution.
Inansweringquestionone,theCourtrefusedtoidentifyaconstitutionallyprotected area,statingthattheFourthAmendmentprotectspeople,notplaces. Thecourtalsonoted thatwhatapersonknowinglyexposestothepublic,eveninhisownhomeoroffice,isnota subjectofFourthAmendmentprotection. Thus,whenthepetitionerKatz,enteredaphone boothmadeofglass,heexposedhimselftotheintrudingeye.
However,asobservedbythecourt,whenheenteredtheboothhesoughttoexclude the uninvited ear. He did not shed is right to do simply because he made his calls from a placewherehemightbeseen. Thatis,
“onewhooccupiesit,shutsthedoorbehindhim,andpaysthetollthatpermitshim toplaceacallissurelyentitledtoassumethatthewordsheuttersintothemouthpiecewill notbebroadcasttotheworld. ToreadtheConstitutionmorenarrowlyistoignorethevital rolethatthepublictelephonehascometoplayinprivatecommunication.”
Thus,theCourtfoundinfavorofthepetitionerconcludingthatthegovernmenthad violatedhisFourthAmendmentrights. Thefamous ‘reasonableexpectationofprivacy’test wascreatedinthiscase. Thatis,asearchisdeemedtohaveoccurredwhereanindividual’s reasonable expectation of privacy is violated. This requires a subjective and objective reading. That is, one, does the individual expect privacy and two, does society recognize privacy.
But the test will not be found in the majority opinion. Justice Harlan, in his concurringopinion,indicatedthatarulehasemergedfrompriordecisionswhichrequires the satisfaction of a twofold requirement; first, that a person have exhibited an actual (subjective)expectationofprivacyand,second,thattheexpectationbeonethatsocietyis preparedtorecognizeas‘reasonable.
Giventhistest,conversationsintheopenwouldnotbeprotected,butincasessuch as Katz,whereaconsciouseffortwasmadeatshuttingthephoneboothdoor,itisassumed that the person making the call is entitled to assume that his conversations are not being intercepted. The ruling in Katz is rather outdated and may prove to be impractical given thepublicrarelyusepublicphoneboothstoday. Thus,itwouldbe interestingtoseehow thecourtwouldconsiderconversationsbyindividualsontheircellphonesthataremadein thepublic,butwherethecallerdesiresfortheconversationstobeprivate.
Other questions also arise. Is the fact that the caller is on a public street making a phone call mean that he is exposing himself to the prying listener? Given how ‘mobile’ mobiletechnologyis,thisinterpretationisnothelpful.
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A search also may occur when the government physically intrudes upon private propertyforthepurposeofobtaininginformation. Case study: U.S. v. Jones
Inthiscase,theCourtheldthattheattachmentofaGlobal Positioning System(GPS) trackingdevicetoavehicle,andsubsequentuseofthedevicetomonitoravehicle’s movementsonpublicstreets,wasasearchwithinthefourthamendment. Inthiscase, AntoineJones,theownerandoperatorofaDCnightclub,cameundersuspicionof traffickingnarcoticsandwasmadethetargetofaninvestigationbyajointFBIand MetropolitanPoliceDepartmenttaskforce.
ThepoliceattachedaGPStrackingdevicetoJones’carinMaryland,andnotthe DistrictofColumbia. TheissueherewasthatthepoliceonlyhadawarrantfortheDistrict ofColumbiaandthushadviolatedtheirwarrant.
Overthenext28days,theGovernmentusedthedevicetotrackthevehicle's movements,andoncehadtoreplacethedevice'sbatterywhenthevehiclewasparkedina differentpubliclotinMaryland. Bymeansofsignalsfrommultiplesatellites,thedevice establishedthevehicle'slocationwithin50to100feet,andcommunicatedthatlocationby cellularphonetoaGovernmentcomputer. Itrelayedmorethan2,000pagesofdataover thefour weekperiod. Basedonthisdata,Joneswasconvicted.
HechallengedtheinsertionoftheGPSdevice,statingthathisFourthAmendment
rightshadbeenviolated. TheGovernmentcontendedthattheHarlanstandardsetoutin Katzshowsthatnosearchoccurredhere,sinceJoneshadno“reasonableexpectationof privacy”intheareaoftheJeepaccessedbyGovernmentagents(itsunderbody)andinthe locationsoftheJeeponthepublicroads,astheywerevisibletoallinthepublic.
TheCourtrevertedtoapropertyrightsdefinitionorasthedissentlabeledit,used “18th centurytortlaw”todeterminethatgovernmentagentsdidinfactinvadeJones’ propertyrightsresultinginasearch. Accordingtothemajority,hadpoliceofficerssimply observedJones’movementsfromoneplacetoanother,theywouldnothavebeenin violationoftheFourthAmendment.
However,sincetherewasaphysicaltrespass,thereisaninvasionofprivacy. The courtessentiallydisregardedtheKatztest. Butinsteadofcreatingamoreuseful,maybe morerelevanttest,theCourtrevertedtoatrespassdoctrine;one,centuriesofcaselawwill revealtobethestandardforFourthAmendmentinterpretation.
Thedecisionin Jones indicatesthatdespitetechnologicadvancement,theCourtsstill viewtechnologyfromahistoricalperspective. Thisdoesnotappeartobethemost practicalsolution.
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Please note: Be aware of situations that involve an individual with no expectation of privacy, such as when incriminating evidence is seized at another individual’s home. Rememberthatthesearchisvalidunlessthereisalegitimateexpectationofprivacyorthe governmenttrespasseduponthedefendant’sprivateproperty.
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In this section, we will look at how the fourth amendment applies to places being searched.
a. Locations searched
1) Home
Although the Supreme Court has stated, “the Fourth Amendment protects people, not places,” the Fourth Amendment, by its terms, protects against an unreasonable governmental search of a “house.” This protectionextends to persons who have theright toimmediatepossessionofadwelling,suchtherenterofanapartment. Therationalehere
is that there is no greater right to privacy than in one’s castle, that is, his home. An individualhasthehighestlevelofprivacyathishome. Thisinterpretationbecomestricky whenanofficersearchesthebackyard,thepatioareaofahouse,agarage unattachedtoa house,openfieldsetc. Let’slookatsomespecificexamples.
a) Curtilage
Inadditiontothehomeitself,anareaimmediatelysurroundingthehomeknownas the “curtilage” may be covered by the “umbrella” of the home’s Fourth Amendment protection. In determining whether the area is protected, the following four factor test applies:
i) Theproximityoftheareatothehome; ii) Whethertheareaisincludedwithinanenclosuresurroundingthehome; iii) Thenatureoftheusestowhichtheareaisput;and iv) The steps taken by the resident to protect the area from observation by passersby.
For Example: A barn was 60 yards away from the main house and 50 yards away from the innermost fence surrounding the house. The barn was not being used for domesticpurposesand,despitebeingsurroundedbyafence,wasfencedinamannerthat didnotpreventpersonsfromobservingwhatlayinsidethefence. Thisiswherefactorfour ofourtestcomesintoplay.
Consequently, the barn and the area immediately surrounding it lay outside the curtilage. Information of illegal drug activity being conducted within the barn gained by drugenforcementagentswhilewithinthatareadidnotconstituteanunreasonablesearch.
b) Open fields
Privatepropertythatliesoutsidethecurtilageofahome,suchasafarmer’sfield,is not protected bythe home’s umbrella of Fourth Amendment protection. Under the “open fields”doctrine,governmentalintrusiononsuchpropertyisnotasearch. Theownerdoes not have a reasonable (that is, objective) expectation of privacy, even though the owner may have a subjective expectation of privacy based on the fact that the land is fenced, protectedfrompublicview,and“notrespassing”signsareposted. Theideaofopenfields was first propounded in Oliver v. United States where police officers drove on to the defendant’sproperty,walkedalongthepropertyforoveramile,whentheyfinallyfounda largemarijuanacrop.
c) Overnight guest in a home
While an overnight guest in a home does not have an ownership interest in the home,suchaguestdoeshaveareasonableexpectationofprivacy,atleastastotheareasof thehometowhichtheguesthaspermissiontoentersuchasthelivingroom.
Astotheabilityoftheownerorguesttoconsenttoasearchofthehome,weneedto contrast short term use of home for illegal business purpose. Short term use of a home (for example, several hours) with the permission of the owner does not give rise to a reasonable expectation of privacy, at least when the home is being used for an illegal business purpose. For example, bagging cocaine for sale on the streets is not protected. This would also include renting an apartment for an illegal purpose. Here too, the renter doesnothaveareasonableexpectationofprivacy,
2) Motel room
As with the search of a home, the search of a motel room by a government agent may be an unreasonable search. A motel clerk’s consent to a governmental search of a roomduringthetimeitisrentedisinsufficienttojustifythesearch.
3) Business premises
In general, the Fourth Amendment protects business premises. However, such premisesmaybesubjectedtoadministrativesearches
4) Prison
Aprisoninmatehasnoreasonableexpectationofprivacyinhiscell. Thelimitations on Fourth Amendment rights are justified by the need to maintain institutional security andpreserveinternalorderanddiscipline. Unlikeaconvict,apretrialdetaineemayhavea limited expectation of privacy in his cell. However, a detainee’s cell may be subject to a routine search, and the detainee’s person may be subject to a strip search or a full body searchafteracontactvisitwithsomeonefromtheoutside.
Important distinction on Trespass: While the fact that a governmental agent is on propertywithoutpermissionmaymakeawarrantlesssearchunreasonable(forexample,a search of a home), the fact that a governmental agent is illegally on property does not automaticallymakethesearchillegalnordoesthefactthatagovernmentalagentislegally inapublicplacemakethesearchlegal.
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In this section, we will look at how papers and effects have been interpreted by courtsinrelationtothefourthamendment.
b. Objects sought
1) Papers and effects
TheFourthAmendment,byitsterms,protects“papersandeffects.” Forexample,a person retains a reasonable expectation that items placed within his luggage will be free from a purposeful, exploratory physical manipulation of the luggage. This would include luggagekeptinanoverheardcompartmentonabusthatisstopped forarandomsecurity check.
But compare smell emanating from object: Apersondoesnothaveareasonable expectationofprivacywithregardtoasmellemanatingfromhisluggage,atleastwhenthe smellarisesfromanillegalsubstance.
When papers and effects are transferred to a third party, such as checks, deposit slips, and financial statements given to a bank, a person no longer has a reasonable expectationofprivacyintheseitems. Similarly,financialstatementsmaintainedbyabank arebankrecordsinwhichthecustomerhasnoreasonableexpectationofprivacy.
Also, a defendant who hides drugs in a friend’s purse in order to avoid their detectionbypolicehasnolegitimateexpectationofprivacyinthepurse.
2) Automobiles
Although,undertheFourthAmendment,stoppingacarconstitutesaseizureofthe driver and any passengers, there is a lesser expectation of privacy with regard to the automobileanditscontentsthanwithahome. Evenso,officersmusthaveanarticulable, reasonablesuspicionofaviolationofthelawinordertostopanautomobile.
Remember,therearenoconstitutionalrightsatanybordercrossings.
a) Checkpoints
Police may stop an automobile at a checkpoint without reasonable, individualized suspicionofaviolationofthelawifthestopisbasedonneutral,articulablestandardsand its purpose is closely related to an issue affecting automobiles. A roadblock to perform sobrietycheckshasbeenupheld,whileasimilarroadblocktoperformdrugcheckshasnot, especiallywhentheroadblockissetupinaknowndrug-neighborhood.
Compare random stops: Police may generally not stop an automobile, even for a driving related matter,without a reasonable, individualized suspicion of a violation of the law, unless the stop is effected on the basis of neutral, articulable standards. However, stopping a vehicle for a broken headlight, even where, another motive might exist is still
legal,asabrokenheadlightisacitableoffense. Thus,apoliceofficer’smotiveisirrelevant toaFourthAmendmentinquiry.
i) Immigration law enforcement
When the purpose of the stop relates to the enforcement of immigration laws, any car may be stopped on a random basis at the border of the United States without a reasonable suspicion of wrongdoing When a search does not occur at the border or its functional equivalent, all cars may be stopped at a fixed checkpoint without a reasonable suspicionofviolationofanimmigrationlaw,butacarmaynotbesingledoutandrandomly stoppedwithoutaparticularizedandobjectivebasis.
ii) Search for witnesses
Acheckpointmaintainedbypoliceforthepurposeoffindingwitnesses,ratherthan suspects,toahit and runaccidentisnotperseunreasonable.
b) Car’s VIN
Thedriverofacardoesnothaveareasonableexpectationofprivacyinthevehicle identification number (VIN) affixed to an automobile. Consequently, a police officer’s movingofpapersthatobstructedhisviewofthisnumberdidnotconstituteasearchunder theFourthAmendment,andagunfoundwhiledoingsowasadmissibleintoevidence.
3) Abandoned property
TheFourthAmendmentdoesnotprotectabandonedproperty. Thisstemsfromthe concept that abandoned property is fair gameand typically, when property is abandoned, theoriginalownernolongerwishestoretainpossession. Thus,withoutownershipandfor thatmatter,withoutpossessionofproperty,nosearchtakesplaceofanother’sproperty.
For Example: Thereisnoreasonableexpectationofprivacyingarbagesetcurbside for pickup. There has been some controversy here as to when garbage is kept at the curbsideandwhenitismeantforpickup. Thatis,ifIleavegarbageoutsidemyhousebut notatthecurb,wasitmeantforpickup?
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c. Persons and their attributes
1) Physical characteristics
There is no expectation of privacy in one’s physical characteristics; therefore, a
demandforahandwritingorvoicesampleisnotasearch. However,otherrightsincluding therighttocounselmayapplyincertaincircumstances.
2) Government informants
Somesurveillanceandinvestigationtechniqueshavebeenheldnottoimplicateany reasonableexpectationofprivacybecausethetargetsofthesurveillancewereregardedas having assumed the risk that the people with whom they were interacting would be governmentagents. Thereisnoreasonableexpectationofprivacyinconversationscarried on with government informants or undercover officers. Similarly, if one party to a telephone call consents to wiretapping or agrees to record the call at the government’s request,suchmonitoringwillnottriggertheFourthAmendmentrightsofanyotherparty to the call. A person also runs the risk that a third party to whom she turns over informationmaydisclosesuchinformationtothegovernment.
Otheritemsthatarenotprotectedbythefourthamendmentincludepaintscrapings on one’s car, account records held by a bank, airspace, voice, odors, and open fields. The rationale for excluding protection is that individuals typically voluntarily expose these itemstothepublicandthereforenoreasonableexpectationofprivacyexists.
d. Methods used to search
1) Fly-over
An inspection conducted from theair,whether by an airplane orahelicopter,does not violate a reasonable expectation of privacy and therefore is not a search for the purposesoftheFourthAmendment. Again,theideahereisthatyourriskexposurebythe peepingeyewhetherbyyourneighbororbysomeoneintheirhelicopter.
2) Technological device
With regard to automobiles, the Fourth Amendment does not prohibit the police from using technological devices to enhance their ability to search (e.g., radar detectors, computerstosearchlicenseplates,surveillanceequipment).
Case study: Smith v. Maryland
In Smith v. Maryland, the victim Patricia McDonough was robbed. She gave the police a descriptionofthe robber. She had also observed thata1975 MonteCarlo wasat the scene of the crime. After the robbery, the victim began receiving threatening and obscenephonecallsfromamanwhoidentifiedhimselfastherobber. Onafewoccasions, the victimobserved that the 1975 Monte Carlo, which she had earlier described to police,